Desai v. Desai

• Decision Date: 02 February 2010
• Docket Number: No. 29559.,29559.
• Citation: 987 A.2d 362,119 Conn.App. 224
• Court: Connecticut Court of Appeals
• Parties: Janak C. DESAI v. Hemangini K. DESAI.

987 A.2d 362

119 Conn.App. 224

Janak C. DESAI v. Hemangini K. DESAI.

No. 29559.

Appellate Court of Connecticut.

Argued October 21, 2009.

Decided February 2, 2010.

Louis Kiefer, Hartford, for the appellant (plaintiff).

Thomas C.C. Sargent, Westport, for the appellee (defendant).

GRUENDEL, BEACH and ALVORD, Js.

BEACH, J.

In this marital dissolution action, the plaintiff, Janak C. Desai, appeals from the judgment of the trial court dissolving his marriage to the defendant, Hemangini K. Desai. The plaintiff claims that the court improperly (1) ordered joint custody while (a) ordering that the defendant be the ultimate decision maker and (b) determining that the minor child's primary residence be with the defendant, (2) made certain factual findings regarding the finances of the marital home and (3) ordered an unequal distribution of the marital assets in view of (a) a $19,000 prior contribution by the plaintiff's parents and (b) the short length of the marriage and the court's finding that the plaintiff's physical violence caused the breakdown of the marriage. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The parties were married in London, England, on March 29, 1999, and are the parents of one child, born in 2002. On February 26, 2007, the plaintiff filed a complaint seeking dissolution of the marriage, sole physical custody and joint legal custody of the parties' minor child and financial relief. On December 19, 2007, a trial was held, following which the court rendered a judgment of dissolution. In its memorandum of decision, the court noted the defendant's assertion that the marital breakdown occurred as a result of several acts of violence committed by the plaintiff and directed toward her.

Pursuant to the terms of the judgment, the parties were awarded joint legal custody and shared physical custody of the minor child, who was to reside primarily with the defendant at the marital home. According to the terms of the joint legal custody award, the parties were to attempt in good faith to make joint decisions. If the parties were unable to come to an agreement, then they were ordered to try to resolve their dispute through mediation. Should mediation be unsuccessful, however, the defendant was to be the ultimate decision maker.

The court also made certain factual findings with regard to the parties' financial assets. It determined that the parties' Fairfield residence was purchased with a first mortgage in the amount of $250,000 and a second mortgage in the amount of $31,260. The court did not credit the plaintiff's claim that his parents loaned him $19,000 for the purchase of the marital home because there was no documentary evidence to support it. The court determined that the Fairfield residence had a present value of $490,000. In ordering a division of the marital property, the court ordered that "[a]ll of the right, title and interest" in the Fairfield residence be conveyed to the defendant, subject to a $50,000 mortgage to the plaintiff payable upon the earliest of (1) a voluntary sale of the home by the defendant, (2) the defendant's death or remarriage or (3) five years. The plaintiff appealed from the court's judgment.

We first set forth our standard of review. "The standard of review in family matters is well settled. An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record or as a whole. . . . A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Daddio v. O'Bara, 97 Conn.App. 286, 291, 904 A.2d 259, cert. denied, 280 Conn. 932, 909 A.2d 957 (2006).

I

The plaintiff makes two claims with regard to the court's order of joint custody. First, the plaintiff claims that the court could not lawfully order that the defendant be the ultimate decision maker, after having ordered that the parties share joint custody, because such award eroded the plaintiff's ability to participate equally in important decisions. The plaintiff next argues that the court's decision to make the defendant the ultimate decision maker and to order that the minor child primarily reside with the defendant was motivated by gender bias. We disagree.

A

The plaintiff argues that the court's award of ultimate decision-making power to the defendant was inconsistent with the award of joint custody because it was inconsistent with the definition of joint custody set forth in General Statutes § 46b-56a(a). Section 46b-56a(a) defines "`joint custody'" for the purposes of that section as "an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents. The court may award joint legal custody without awarding joint physical custody where the parents have agreed to merely joint legal custody." The plaintiff first argues that by awarding the defendant ultimate decision-making power, the court essentially has prevented him from having joint legal custody. We disagree.

The court was authorized to issue orders regarding the custody of the minor child pursuant to General Statutes § 46b-56(b), which provides in relevant part: "In making or modifying any [custody] order . . . the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests. Such orders may include, but shall not be limited to: (1) Approval of a parental responsibility plan agreed to by the parents pursuant to section 46b-56a, (2) the award of joint parental responsibility of a minor child to both parents, which shall include (A) provisions for residential arrangements with each parent in accordance with the needs of the child and the parents, and (B) provisions for consultation between the parents and for the making of major decisions regarding the child's health, education and religious upbringing; (3) the award of sole custody to one parent with appropriate parenting time for the noncustodial parent where sole custody is in the best interests of the child; or (4) any other custody arrangements as the court may determine to be in the best interests of the child."

Section 46b-56(b) grants the court broad power to issue orders regarding the custody of the minor child. Section 46b-56(b) specifically authorizes a variety of orders regarding custody, including provisions for consultation and "any other custody arrangements as the court may determine to be in the best interests of the child." The definition of joint custody in § 46b-56a(a), which is useful for, inter alia, interpreting agreements and applying presumptions, does not foreclose options authorized by § 46b-56. The court's decision regarding joint custody of the parties' minor child specifically provided the parties with a method of joint responsibility for the major decisions regarding the minor child. The court's memorandum of decision stated that the parties were to attempt to agree in good faith to make decisions regarding the minor child. If the parties were unable to reach an agreement, they were to attempt to resolve the disagreement through mediation. The defendant was to make the ultimate decision regarding any disagreement between the parties only in the event that mediation failed to resolve their dispute. The court's decision did not prevent the plaintiff from exercising a degree of decision-making power with regard to the minor child but, rather, contemplated and provided the parties with a solution for the occasion when, despite good faith and multiple attempts to reach a decision, the parties were stymied. Nothing in §§ 46b-56 or 46b-56a prevents the court from so ordering.¹

Previously, we rejected the argument that a grant of ultimate decision-making authority to one parent is in effect an order of sole custody. In Tabackman v. Tabackman, 25 Conn.App. 366, 368-69, 593 A.2d 526 (1991), we determined that a nearly identical order was a form of joint custody, despite one spouse's ultimate authority to make decisions. We find no merit in the plaintiff's claim.

B

The plaintiff next claims that the court's orders that the defendant have ultimate authority to make decisions regarding the child and that the minor child's primary residence be with the defendant were improper because they were based solely on the defendant's gender, without any evidence supporting the decision that the defendant was better suited for those roles than the plaintiff. We disagree.

We are limited in our review to determining whether the trial court abused its broad discretion in awarding the defendant ultimate decision-making authority and ordering the minor child's primary residence to be with the defendant, based upon the best interest of the child as reasonably supported by the evidence. Dubicki v. Dubicki, 186 Conn. 709, 717, 443 A.2d 1268 (1982).

The court expressly found that "both [parents...